Analysis: Might vulgarity be quite proper?
on Oct 30, 2008 at 3:34 pm
Unless Chief Justice John G. Roberts, Jr., intervenes, some of the argument in the Supreme Court chamber next Tuesday morning may sound at times like a typical conversation in a seventh grade boys’ restroom — the uninhibited use of four-letter words.
 And, if Roberts allows it, such a display of blue language will be heard on TV and radio — in the middle part of the day — across America, and may be read the next morning in many newspapers. But, apparently, not in every news outlet.
The case to be heard first on Tuesday is, in fact, about profanity — what two widely used, vulgar words mean, at least in legal terms, and what the government can do about punishing their use, at least on radio and television in daytime and prime time.  The case is Federal Communications Commission v. Fox Television Stations (07-582); the FCC is asking the Court to restore its authority to ban the single, fleeting utterance on the air of two words — “fuck” and “shit.”
Chief Justice Roberts apparently has not yet made up his mind whether to allow the C-SPAN cable network and other broadcasters to replay the audiotape of the oral argument within minutes after Tuesday’s argument is over? His chambers has not responded to an inquiry about that. Another choice he may ponder is whether to tell the lawyers, bluntly or subtly, not to use the words at issue. There is a precedent for that.
It is possible, of course, to treat the profanity issue with such delicacy — in the courtroom, and in news coverage of the argument and the case — as to miss the point. The words are, after all, the central focus of the FCC policy at issue: the way the FCC interprets the meaning of their utterance is the very reason it now bans their “fleeting” use (except in news broadcasts and when essential to “artistic integrity”). Their use in public conversation and news accounts, thus, may well be justified — forensically if not otherwise.
If  the issue is left to the lawyer representing broadcasters next Tuesday, Carter G. Phillips of Washington’s Sidley Austin, the words will be part of the hearing. “Unless the Court tells me not to,” Phillips says, “I would not shy away from using those words. It is hard to argue parts of he case saying ‘F-word’ and ‘S-word.’ “ Because he is arguing second, rather than first, he would not start the argument that way, he said, “but in answering questions it would be quite natural just to use the actual words. As Judge [Pierre] Leval said in his [Second Circuit Court] dissent, in the context of this case, it is not inappropriate to use those words in open court. But if the Court would prefer that I not, then I would obviously defer to the Justices.”
Phillips argued the case in the Second Circuit and began his presentation by quoting two of the performers who had used the words, leading to the FCC ban. Two of two of the three judges on the Circuit panel asked questions that included the words. And the C-SPAN cable and radio networks broadcast the argument without editing.
Thus, the choices that Chief Justice Roberts makes in advance of the Fox TV asrgument may well determine whether the two words at issue do, or don’t, get widely repeated on audio broadcasts of the argument. But, with or without those words spoken in court and with or without the release of the audiotapes, news organizations of all types will be making the choice for themselves whether to publish the words in their coverage. Perhaps not surprisingly, there is variation.
The Associated Press — by most accounts, the most widely used wire service covering the Supreme Court — has a stylebook policy against publishing obscene, profane or vulgar words — unless they are part of a quotation and there is “a compelling reason” to publish them. Mark Sherman, the AP’s correspondent at the Court, said that “ordinarily, it is not a close call.” It might be different, he said, if the words are actually used in the oral argument.  He has not yet been given guidance by his editors as to next week, but probably would follow past practice if it up to him, he said.
The New York Times, the newspaper whose coverage of the Court is probably followed most widely, did not use the words when the Court agreed to hear the Fox TV case in March, and apparently will not do so this time, either. Adam Liptak, The Times’ correspondent, said “I would be very surprised if we used” the F-word. “It is hard to imagine we would use it. I’ve not raised the issue, because I think I know the answer.” In his advance story on the argument, Liptak noted, “I wrote around it.”
Another major newspaper that closely covers the Court, the Los Angeles Times, has a policy against using profanity. David Savage, its correspondent on the beat, said “there may be exceptions, but it doesn’t seem entirely necessary here, since you can convey the same thought without using the actual words.” He said he was unsure about Tuesday. He said he would go into the argument assuming he would use only he “F-word” formulation, as he did when review was granted, “but may change my mind if the actual words become an important feature of the argument.”
Bloomberg News, a rapidly expanding news wire service, used the words in its story when the Court granted review. “I will probably use them again, because that’s what the case is all about,” said its Court correspondent, Greg Stohr.
The Los Angeles Daily Journal, a publication read by the legal community in California, apparently settled the issue for itself when it used the words in coverage of the grant of review, according to its corespondent, Lawrence Hurley.
Chief Justice Roberts might well draw some further attention to the issue if he were to follow the lead of one of his predecessors and opt for prudence when he calls the lawyers to the podium.
Chief Justice Warren E. Burger made news on the use-it-or-not issue on Feb. 22, 1971, when he opened the hearing in Cohen v. California with this comment to the first lawyer at the podium: “I might suggest to you that, as in most cases, the Court’s thoroughly familiar with the factual setting of this case, and it won’t be necessary for you, I’m sure, to dwell on the facts.” The factual setting was that a department store worker in California had been convicted of a crime for going into a courthouse during the Vietnam War while wearing a jacket with the message: “FUCK THE DRAFT. STOP THE WAR.”
Chief Justice Burger’s vigilance continued up to the point the decision was announced on June 7 of that year. According to the book, The Brethren, Burger approached Justice John M. Harlan, the opinion’s author, and said: “John, you’re not going to use ‘that word’ in delivering the opinion are you? It would be the end of the Court if you use it, John.” And Harlan did not. It was included, though, in the Court’s opinion finding that Cohen’s First Amendment rights had been violated. Justice Harlan described Cohen’s message as one involving a “scurrilous epithet,” but he also wrote: “While the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric.”
